# Petition for Writ of Certiorari — Johnson v. United States Postal Service

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 811

## Text

Supreme Court, U.S.
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f | JOSEPH F. SPANIOL,
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In The

Supreme Court of the United States
October Term, 1988

as -—--@-—-— - -

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

THOMAS L. ROBERTS
(Counsel of Record)

BRIAN E. BATES

Pryor, CARNEY & JOHNSON,

A Professional Corporation

6200 South Syracuse Way, Suite 400

Englewood, CO 80111

Telephone: (303) 771-6200
Attorneys for Petitioner

May 15, 1989

QUESTIONS PRESENTED

After finding the 30-day filing period of 42 U.S.C.
§ 2000e-16(c) to be a statute of limitation and not a
jurisdictional time limit, did the majority opinion below
misapprehend or misapply prior decisions of this Court
and cause a split of authority among the Circuits concern-
ing equitable tolling of the 30-day period when a Title VII
plaintiff moves for appointment of counsel and in forma
pauperis status or is proceeding in forma pauperis and
relies on officers of the court to serve process pursuant to

28 U.S.C. § 1915(c)?

Does the “sue and be sued” clause of 39 U.S.C.
§ 401(1) permit a Title VII plaintiff to bring an action
against the Postal Service in its name, notwithstanding
the requirement of 42 U.S.C. § 2000e-16(c) that the head
of the agency is the proper party defendant?

il

TABLE OF CONTENTS

Page
QUESTIONS PRESENT GG: « .sc00cs 5 eevee eee eee i
COPIES BEI. 63 bok ci eee 1
Fis ER E.SUN 8-95 d sven Vea ee ee eee 2
STATUTORY PROVISIONS INVOLVED............. 2
SIATEMENT OF "THe CAGE... ...cs00e eee eee 2
REASONS FOR GRANTING THE WRIT ........... 6

I. The Decision Below Conflicts with the Tolling
Rule Articulated by this Court and Conflicts with
Other Circuit Court Decisions Which Have Held
That a Title VII Plaintiff who Moves for or has
been Granted In Forma Pauperis Status is Entitled
to Equitable Tolling of the 30-Day Filing Period of
42 USL. § 2Me-16i) | sos cave eee 6

II. This Court’s Decision in Loeffler v. Frank Inter-
preting the “Sue and be Sued” Clause of 39
U.S.C. § 401(1) Compels the Conclusion that
the United States Postal Service May be the
Named Party Defendant in a Title VII Action
Notwithstanding the Provisions of 42 U.S.C.

§ 20000 1OC) oo. cies ca ee 13

CONCLUSION

Si a NS I

lil

TABLE OF CONTENTS - Continued
Page

APPENDIX A

(Opinion of the Court of Appeals for the Tenth
Circuit in Johnson v. U. S. Postal Service, 861 F.2d
a ES 0) | cr App. 1

APPENDIX B

(Memorandum Opinion and Order of the Dis-
trict Court for the District of Colorado in John-
son v. U.S. Postal Service, 113 F.R.D. 73 (D. Colo.
i sa Kb cee ncadavev cas App. 35

iv

TABLE OF AUTHORITIES

Page
CASsEs:
Baldwin County Welcome Center v. Brown, 466 U.S.

147, 104 S.Ct. 1723, 80 L.Ed. 2d 196 (1984)..... b, 9, 11
Boddy v. Dean, 821 F.2d 346 (6th Cir. 1987).......... 7
Carlile v. South Routt School Dist. RE 3-J, 652 F.2d

eis aie > Dbl tamale tyme! PIA AR NE ety aA fy eer 8
Cooper v. United States Postal Serv., 471 U.S. 1022

CUO $i causa cwes sh CONSE Mbetyeeey eee weer 7
Cooper v. United States Postal Serv., 740 F.2d 714

(9th Cir. 1984), cert. denied, 471 U.S. 1022, 105

GR, Meee GD LE. Bee DEO CIP acc ie etc n cena es 7
FHA v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed.

FR RISEN cee Sa KNE REAM ARK PRE EER Ronee ee 14, 15

Franchise Tax Board of California v. U.S.P.S., 467
U.S. 512, 104 S.Ct. 2549, 81 L.Ed. 2d 446 (1984).... 13

Gonzales v. Secretary of the Air Force, 824 F.2d
392 (5th Cir. 1987), cert. denied, = US. _,
108 S.Ct. 1245, 99 L.Ed. 2d 443 (1988)........... 7, 16

Harris v. Walgreen’s Distribution Center, 456 F.2d
Pe AM i ROR ack orcad etka eras ek Ve sao re en eas 8

Hornsby v. United States Postal Serv., 787 F.2d 87
Ge Re OE ese ok ce we Voc kee ek ere on rahe eee 7

Library of Congress v. Shaw, 478 U.S. 310, 106
AL. Seay We Ld ER DO CISORK oi 5c ec ew es ccsus iZ

Loeffler v. Frank, 486 U.S. _, 108 S.Ct. 1965, 100
Leta. 20E SOP CIGBS) «ww cc. cs cccancce 13, 34, 15, 16, 17

TABLE OF AUTHORITIES - Continued
Page

Martinez v. Orr, 738 F.2d 1107 (10th Cir. 1984).... 7, 9, 11

Milam v. United States Postal Serv., 674 F.2d 860
40): Be ao. > 5 Regemenpae sete rye ner rarer ra. eee 7

Mondy v. Secretary of the Army, 845 F.2d 1051
eles Se, | oe reer ee rT er Veet Te ey re Pe ee

Paulk v. Dept. of the Air Force, 830 F.2d 79 (7th
ee SED oa eke e kee CR eee ee 4, 3;

Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379,
Pt E.2e WO CPG. cao oxcy cs os ieee 5. 9, 12, 16

Simms v. Heckler, 725 F.2d 1143 (7th Cir. 1984) ...7, 10

Stuckett v. United States Postal Serv., 469 U.S. 898
OOS cu cea weeaee ele tedt ete 8

Travelers Indemnity Co. v. United States ex rel.
Construction Specialties Co., 382 F.2d 103 (10th

CME, FPG NLU eee a aes huey ia eeu eee ewes 12
Warren v. Dept. of Army, 867 F.2d 1156 (8th Cir.

i eats ar er erry 7, 9, 10, 11
Zipes v. Trans World Airlines, Inc., 455 U.S. 385,

102 S.Ct. 1127, 71 UB. 20 258 CUSB2). «sis caees. 7
STATUTES:
BO Us REE cv cleace snc csthee ne ens cane 2
Se Rie SUE kha es ae hake areas 4, 1, 1, 12

FF As Oe hon eee ta ae ene s, i 1955 7

vi

TABLE OF AUTHORITIES - Continued

Page
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ent Wh CUNO UN es occ ea cs was veda Rea eee eek ed
RULEs:
he AD as © |) RA Sareea re i gm era 5

co ee SS SD lh | ot i ace eee or >> ms WO, ES

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_—

In The

Supreme Court of the United States
October Term, 1988

4.
4

JERRALD M. JOHNSON,

Petitioner,

UNITED STATES POSTAL SERVICE,

Respondent.

»
a4

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

aH
vw

The petitioner, Jerrald M. Johnson, respectfully prays
that a writ of certiorari issue to review the judgment ana
opinion of the United States Court of Appeals for the
Tenth Circuit entered in this proceeding on November 30,

1988.

a
~

OPINIONS BELOW

The majority and dissenting opinions of the Court of
Appeals are reported at 861 F.2d 1975 and appear as
Anpendix A hereto. The Memorandum Opinion and

Order of the District Court for the District of Colorado is
reported at 113 FR.D. 73 and appears as Appendix B.

»
a

JURISDICTION

Invoking federal jurisdiction under 42 U.S.C.
§ 2000e-16(c), petitioner brought suit against the Postal
Service in the District Court for the District of Coiorado.
On November 7, 1986, the District Court granted the
Postal Service’s motion to dismiss. Petitioner then
appealed to the Tenth Circuit Court of Appeals.

The judgment of the Tenth Circuit Court of Appeals
was entered on November 30, 1988. A timely petition for
rehearing and suggestion for rehearing en banc was
denied on February 15, 1989, and this petition for cer-
tiorari was filed within 90 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).

wv

a
7

STATUTORY PROVISIONS INVOLVED
28 U.S.C. § 1915. Proceedings in forma pauperis

(c) The officers of the court shall issue and serve all
process, and perform all duties in such cases. Witnesses
shall attend as in other cases, and the same remedies shall
be available as are provided for by law in other cases.

39 U.S.C. § 401. General powers of the Postal Service

The Postal Service shall have the following general
powers:

(1) to sue and be sued in its official name;

42 U.S.C. § 2000e-16. Employment by Federal
Government

(c) Within thirty days of receipt of notice of final
action taken by a department, agency, or unit referred to
in subsection (a) of this section, or by the Equal Employ-
ment Opportunity Commission upon an appeal from a
decision or order of such department, agency, or unit ona
complaint of discrimination based on race, color, religion,
sex or national origin, brought pursuant to subsection (a)
of this section, Executive Order 11478 or any succeeding
Executive orders, or after-one hundred and eighty days
from the filing of the initial charge with the department,
agency, or unit or with the Equal Employment Oppor-
tunity Commission on appeal from a decision or order of
such department, agency, or unit untii such time as final
action may be taken by a department, agency, or unit, an
employee or applicant for employment, if aggrieved by
the final disposition of his complaint, or by the failure to
take final action on his complaint, may file a civil action
as provided in section 2000e-5 of this title, in which civil
action the head of the department, agency, or unit, as
appropriate, shall be the defendant.

,%
_

STATEMENT OF THE CASE

The petitioner Jerrald M. Johnson was discharged on
December 30, 1983 by the Postal Service from his position
as a mail handler at the Denver (Colorado) Bulk Mail

Center.

Mr. Johnson pursued administrative remedies
through the Merit Systems Protection Board (“MSPB”)
and to the Equal Employment Opportunity Commission
(“EEOC”) contending that the reasons given for his dis-
charge (absenteeism) were false and pretextual and made
to obscure the true reason for, his termination -
discrimination based on handicap (the permanent disabil-
ity of Mr. Johnson’s right foot).

On July 13, 1985, Mr. Johnson received a “right to
sue” letter from the EEOC, and five days later, he filed in
the United States District Court for the District of Colo-
rado a motion to proceed in forma pauperis and for
appointment of counsel. Chief Judge Finesilver granted
Mr. Johnson’s motion to proceed in forma pauperis on July
22, 1985, but denied his motion for appointment of coun-
sel. On that same date, Judge Finesilver ordered the
United States Marshal to serve process in connection with
the case.

Mr. Johnson timely filed his original pro se Complaint
on August 12, 1985, naming the Postal Service — his
administrative adversary for over three years — as a
defendant. He did not, as arguably required under 42
U.S.C. § 2000e-16(c), name the Postmaster General as a
defendant.

Pursuant to Judge Finesilver’s Order and 28 U.S.C.
§ 1915, the Marshal sent the Summons and original Com-
plaint by certified mail to the United States Postal Ser-
vice, c/o E. C. Nix at 7755 E. 56th Street, Denver,
Colorado, which was received on August 16, 1985, but the
Marsha? did not serve the United States Attorney or the

Attorney General. District Court Opinion at 74; Appendix
B at App. 36.

On January 24, 1986, District Court Judge John Kane
issued an Order to Show Cause as to why service of
process was incomplete. On February 3, 1986, finding
good cause shown, Judge Kane granted a 30-day exten-
sion of time in which to perfect service. Mr. Johnson then
served the United States Attorney, the Postal Service, and
the Attorney General on February 7, 10 and 11, 1986,
respectively.

On April 1, 1986, the defendant moved to dismiss the
Complaint pursuant to Fed. R. Civ. P. 12(b) and 15(c),
asserting, among other grounds, lack of subject matter
jurisdiction based upon plaintiff's failure to name the
Postmaster General as a defendant. The court, relying
upon Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91
L.Ed.2d 18 (1986) (holding that an amendment to a Com-
plaint to name a new party will not relate back to the date
of the original filing under Fed. R. Civ. P. 15(c) if the
party to be added did not receive notice of the institution
of the civil action within the limitations period), granted
the motion to dismiss. Critical to the District Court’s
dismissal was the fact that the statutorily prescribed
defendant, the Postmaster General, did not receive notice
of the action until August 16, 1985, four days outside the
30-day time limitation for filing such actions, pursuant to
42 U.S.C. § 2000e-16(c). Under the District Court’s read-
ing of Schiavone, without timely notice to the proper
defendant, relation-back principles could not be applied,
and the Complaint could not be amended pursuant to
Fed. R. Civ. P. 15(c) in order to name the Postmaster
General.

6

On November 30, 1988, the Tenth Circuit Court of
Appeals, in a split two-to-one decision, affirmed the Dis-
trict Court’s dismissal of Mr. Johnson’s Complaint. While
recognizing that the 30-day time limitation imposed by 42
U.S.C. § 2000e-16(c) for filing civil actions is a limitations
period subject to the doctrine of equitable tolling, the
Circuit Court held that the doctrine was not applicable
here because the alleged inadequate service by the United
States Marshal did not rise to the level of ” ‘active decep-
tion’ sufficient to invoke the powers of equity.” Opinion
below at 1480; Appendix A at App. 13. The Circuit Court
decision also held that while Mr. Johnson relied on the
Marshal for proper service of his Complaint, he was not
“lulled into inaction by [his] past employer, state or fed-
eral agencies, or the courts.” Opinion below at 1480;
Appendix A at App. 13.

REASONS FOR GRANTING THE WRIT

Ae

The Decision Below Conflicts with the Tolling Rule
Articulated by this Court and Conflicts with Other
Circuit Court Decisions Which Have Held That a
Title VII Plaintiff whe Moves for or has been
Granted In Forma Pauperis Status is Entitled to
Equitable Tolling of the 30-Day Filing Period of 42
U.S.C. § 2000e-16(c).

In agreeing that 42 U.S.C. § 2000e-16(c) is subject to
equitable tolling,’ but refusing to toll that time period in

1 Various Circuit Courts have split on the issue as to
whether the time period at issue in this case is jurisdictional or
a statute of limitations.

(Continued on following page)

this action, the decision of the Tenth Circuit fails to follow
this Court’s directives as to circumstances which call for
the application of equitable tolling.

(Continued from previous page)

Relying principally on Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed. 2d 234 (1982) (holding
that the 180-day filing period of 42 U.S.C. § 2000e-5(e) for suits
against private employers in Title VII actions is a statute of
limitation subject to waiver, estoppel, and equitable tolling),
most of the Circuit Courts of Appeal which have faced the
issue have determined that the 30-day period of 42 U.S.C.
§ 2000e-16(c) is a limitations period subject to equitable tolling
in appropriate circumstances. See, Warren v. Dept. of Army, 867
F.2d 1156, 1159 (8th Cir. 1989); Mondy v. Secretary of the Army,
845 F.2d 1051, 1057 (D.C.Cir. 1988); Boddy v. Dean, 821 F.2d 346,
349-50 (6th Cir. 1987); Hornsby v. United States Postal Serv., 787
F.2d 87, 89 (3d Cir. 1986); Martinez v. Orr, 738 F.2d 1107, 1110
(10th Cir. 1984); Milam v. United States Postal Serv., 674 F.2d 860,
862 (11th Cir. 1982).

Other circuits have held that the 30-day period is jurisdic-
tional, largely because as an express waiver of sovereign
immunity it must be construed narrowly. See, Gonzales v. Secre-
tary of the Air Force, 824 F.2d 392 (Sth Cir. 1987), cert. denied, __
U.S. __, 108 S.Ct. 1245, 99 L.Ed. 2d 443 (1988); Cooper v. United
States Postal Serv., 740 F.2d 714, 715-16 (9th Cir. 1984), cert.
denied, 471 U.S. 1022, 105 S.Ct. 2034, 85 L.Ed. 2d 316 (1985);
Simms v. Heckler, 725 F.2d 1143, 1145 (7th Cir. 1984).

The Seventh Circuit subsequently created a hybrid rule,
holding that the filing period prescribed by § 2000e-16(c) is
jurisdictional, but such period is nevertheless tolled during the
pendency of an in forma pauperis petition. Paulk v. Dept. of the
Air Force, 830 F.2d 79, 81-83 (7th Cir. 1987).

On at least two prior occasions, this Court has declined to
resolve this split. See, Cooper v. United States Postal Serv., 471
U.S. 1022 (1985) (White, J., dissenting from denial of certiorari);

(Continued on following page)

In Baldwin County Welcome Center v. Brown, 466 U.S.
147, 104 S.Ct. 1723, 80 L.Ed. 2d 196 (1984) (per curiam),
this Court examined various circumstances in which
equitable tolling would be appropriate and perhaps
required. Although the Court ultimately reversed the
Eleventh Circuit’s application of equitable tolling under
the facts in Baldwin County, this Court cited with approval
several Circuit Court decisions which had properly
applied the doctrine of equitable tolling. The Baldwin
County opinion suggested that the following circum-
stances justify application of equitable tolling:

[W]here a motion for appointment of counsel is
pending and equity would justify tolling the statu-
tory period until the motion is acted upon, see, Harris
v. Walgreen’s Distribution Center, 456 F.2d 588 (6th Cir.
1972); or where the Court has led the plaintiff to
believe she had done everything required of her, see,
Carlile v. South Routt School Dist. RE 3-J, 652 F.2d 981
(10th Cir. 1981).

Baldwin County, 466 U.S. at 151. Of course, combined with
his motion to proceed in forma pauperis Mr. Johnson
simultaneously moved for appointment of counsel. Had
either the District Court or the Circuit Court followed the
tolling rule of Baldwin County, the certified mailing to the
Postal Service would have fallen within the 30-day limita-
tions period of § 2000e-16(c). This distinction is especially
critical here, since the District Court indicated that if

(Continued from previous page)

Stuckett v. United States Postal Serv., 469 U.S. 898 (1984) (White,
J., joined by Rehnquist, J., dissenting from denial of certiorari).
Acceptance of Certiorari here could lead to resolution of this
division of authority among the Circuits.

timely, the certified mailing to the Postal Service would
have satisfied the notice requirement of Fed. R. Civ. P.
15(c). District Court Opinion at 76; Appendix B at App.
40. Furthermore, the District Court indicated that under
such circumstances, it would have permitted Mr. Johnson
to amend his Complaint to name the Postmaster General
and would have allowed that amendment to “relate-
back” to the date of original filing within the require-
ments of Fed. R. Civ. P. 15(c) and Schiavone v. Fortune, 477
U.S. 21, 106 S.Ct. 2379, 91 L.Ed. 2d 18 (1986). District
Court Opinion at 76; Appendix B at App. 40.

Shortly after this Court decided Baldwin County, the
Tenth Circuit Court of Appeals decided a case involving a
Title VII plaintiff who was proceeding against his former
federal employer. In that case, the Tenth Circuit held:

[T]he time limits contained in Title VII will be tolled
only where the circumstances of the case rise to a
level of “active deception” sufficient to invoke the
powers of equity. (Citation omitted). For instance,
equitable tolling may be appropriate where a plaintiff
has been “lulled into inaction by her past employer,
state or federal agencies, or the courts.”

Martinez, 738 F.2d at 1110 (citations omitted).

While the decision below properly recognized that
§ 2000e-16(c) is subject to equitable tolling, it nevertheless
found, simply, that Mr. Johnson’s was “not an appropri-
ate case for equitable tolling.” Opinion below at 1480;
Appendix A at App. 13. That holding is in direct conflict
with decisions of the District of Columbia, Seventh, and
Eighth Circuits in cases which are factually similar to this
case. See, Warren, 867 F.2d at 1159-61; Mondy, 845 F.2d at
1057; Paulk, 830 F.2d at 82-83.

10

For example, the Seventh Circuit has apparently
adopted a per se rule that the 30-day limitation period of
42 U.S.C. § 2000e-16(c) will be tolled during the pendency
of a petition to proceed in forma pauperis. Paulk, 830 F.2d
at 82-83. Interestingly, that rule applies notwithstanding
that the Seventh Circuit considers § 2000e-16(c) to be
jurisdictional and not a statute of limitation. Simms, 725
F.2d at 1146. The Seventh Circuit has found that the delay
in determining an in forma pauperis petition is:

fully expectable due to [the Seventh] Circuit’s rule

that the district judge may consider whether the com-

plaint is frivolous or malicious before granting leave
to proceed in forma pauperis under § 1915(a) and
authorizing issuance of the summons and service of
the complaint. .. . The delay in deciding to grant this
motion could easily consume the thirty-day limita-
tions period and make impracticable the filing of in

forma pauperis petitions in such suits. Tolling the lim-

itations period during the pendency of such a

motion, even when the federal government is the

defendant, allows 28 U.S.C. § 1915 and Rule 15(c) to
operate harmoniously, instead of denying the bene-

fits of the 1966 Amendment of Rule 15(c) to the very
plaintiffs who are most likely to need it.

Paulk, 830 F.2d at 82-83 (citations omitted).

Applying the same rationale, the Eighth Circuit con-
cluded that equitable tolling ought to apply during the
pendency of a plaintiff’s in forma pauperis petition, which
was ultimately denied. Warren, 867 F.2d at 1160. In War-
ren, as in this action, the plaintiff was lulled into inaction
or mistaken action by language of the right-to-sue letter,
which indicated that all that was required for the plaintiff
to preserve his right to sue was the filing of a complaint
within 30 days. Additionally, in Warren, plaintiff’s motion

11

to proceed in forma pauperis was actually pending for 32
days. Relying on Baldwin County, and Martinez, the Eighth
Circuit in Warren concluded that the 30-day period of 42
U.S.C. § 2000e-16(c) ought to be tolled under such
“unusual” and “peculiar” circumstances. Warren, 867 F.2d
at 1160-61.

In a case involving somewhat similar circumstances,
the District of Columbia Circuit tolled the 30-day limita-
tions period of § 2000e-16(c) because the United States
Marshal delayed service of the Complaint until some four
months following its filing. Mondy, 845 F.2d at 1052.
Under those circumstances, the court noted that the equi-
ties weighed in favor of the plaintiff and that fairness
demanded that the time limit be tolled. Circuit Judge
McKay adhered to this position in his dissenting opinion
below, stating:

Applying the tolling rule expounded in Baldwin
County, as well as our own precedent, it is clear that
the limitations period should be tolled in this case.
Once it granted Mr. Johnson’s in forma pauperis peti-
tion, the court, through the U.S. Marshal’s Office,
was required by federal law to properly serve defen-
dants. Nothing more was expected of, or could have
been done by, Mr. Johnson. A reasonable person in
Mr. Johnson’s position would have understood that
the court’s Order, by its terms, provided that his
complaint would be properly served in a timely man-
ner.«Unquestionably, Mr. Johnson was “lulled into
inaction” by his reasonable reliance on the process
authorized by statute and implemented by officers of
the court.

.... However, 29 U.S.C. § 1915(c) instructs that “[t]he
officers of the court shall issue and serve all process,
and perform all duties” in this type of case. In my view,

12

the plain language of section 1915(c) imposes a spe-
cial duty upon officers of the court to assist impecu-
nious and generally unsophisticated plaintiffs to
navigate safely through the procedural maze created
by applicable statutes and rules.

Opinion below at 1486; Appendix A at App. 26-27
(McKay, J. dissenting) (emphasis in original).

Mr. Johnson expected and relied upon the United
States Marshal to comply with the terms enunciated in
the statute which instruct that the officers of the court
shall “perform al! duties in such cases.” 28 U.S.C.
§ 1915(c). Tolling the limitations period during the pen-
dency of the in forma pauperis motion or from the time the
complaint is filed until such time it is served by the
officers of the court, consistent with their duties and
responsibilities under 28 U.S.C. § 1915(c), permits both
§ 1915(c) and Fed.R.Civ.P. 15(c) to operate harmoniously
toward the ends of fair play and substantial justice.?

2 Petitioner recognizes that equitable tolling of
§ 2000e-16(c) would allow him to proceed with his lawsuit and
name the Postmaster General as the proper party defendant
and have it relate back to the filing of the original Complaint,
only if the so-called “identity-of-interest” exception operates.
Under the “identity-of-interest” exception, recognized by this
Court in Shiavone, “ ‘an amendment that substitutes a party in
a complaint after the limitations period has expired will relate
back to the date of the filing of the original complaint’ if the
‘correct’ defendant is sufficiently identified with the
improperly-named party. 477 U.S. at 28 and n.7, 106 S.Ct. at
2384 and n.7 (citing Travelers Indemnity Co. v. United States ex
rel. Construction Specialities Co., 382 F.2d 103 (10th Cir. 1967)).”
Opinion bclow at 1487; Appendix A at App. 30, (McKay, J.,
dissenting).

13

Il.

This Court’s Decision in Loeffler v. Frank Interpret-
ing the “Sue and be Sued” Clause of 39 U.S.C.
§ 401(1) Compels the Conclusion that the United
States Postal Service May be the Named Party
Defendant in a Title VII Action Notwithstanding
the Provisions of 42 U.S.C. § 2000e-16(c).

Under the 1970 Postal Reorganization Act, 39 U.S.C.
§ 401, which created the Postal Service, Congress
empowered the Service “to sue and be sued in its official
name.” 39 U.S.C. § 401(1) (emphasis added). This Court
has held that this “sue and be sued” clause must be
liberally construed and that liability of the Postal Service
must be presumed to be the same as that of any other
business. Frarchise Tax Board of California v. U.S.P.S., 467
U.S. 512, 517-20, 104 S.Ct. 2549, 81 L.Ed. 2d 446 (1984). In
this Court’s recent decision, Loeffler v. Frank, 486 U.S. __,
108 S.Ct. 1965, 100 L.Ed. 2d 549 (1988), holding that an
interest award against the Postal Service in a Title VII
action was appropriate given the specific yet broad
waiver of sovereign immunity codified in the “sue and be
sued clause,” this Court stated:

By launching “the Postal Service into the commercial

world,” and including a sue-and-be-sued clause in its

charter, Congress has cast off the Service’s “cloak of

sovereignty” and given it the “status of a private
commercial enterprise.”

Loeffler, 486 U.S. at __, 108 S.Ct. at 1970, 100 L.Ed. 2d at
558, quoting Library of Congress v. Shaw, 478 U.S. 310, 317,
n.5, 106 S.Ct. 2957, 92 L.Ed. 2d 350 (1986).

When Congress chooses to waive sovereign immu-
nity of certain federal entities at their inception, by

including a “sue and be sued” clause in the original

14

enabling legislation, the waiver although specific is quite
broad, and is to be construed liberally. As the Court
explained in FHA v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84
L.Ed. 724 (1939):

i.

[S]uch waivers by Congress of governmental immu-
nity . . . should be liberally construed. . . . Hence,
when Congress establishes such an agency, autho-
rizes it to engage in commercial and business trans-
actions with the public, and permits it to “sue and be
sued,” it cannot be lightly assumed that restrictions
on that authority are to be implied. Rather if the
general authority to “sue and be sued” is to be
delimited by implied exceptions, if must be clearly
shown that certain types of suits are not consistent with
the statutory or constitutional scheme, that an implied
restriction of the general authority is necessary to
avoid grave interference with the performance of a
governmental function, or that for other reasons it
was plainly the purpose of Congress to use the “sue
and be sued” clause in a narrow sense. In the absence
of such showing, it must be presumed that when
Congress launched a governmental agency into the
commercial world and endowed it with authority to
“sue and be sued,” that agency is not less amenable
to judicial process than a private enterprise under
like circumstances would be.

Burr, 309 U.S. at 245 (footnote omitted) (emphasis added).

This Court notes in Loeffler that Title VII does not
purport in any way to limit or narrow the waiver of
sovereign immunity of entities subject to “sue and be
sued” clauses. Loeffler, 486 U.S. at __, 108 S.Ct. at 1972,
100 L.Ed. 2d at 560. It is axiomatic, then, that the require-
ments of 42 U.S.C. § 2000e-16(c) to the effect that the head
of the agency, department, or unit must be the named

—
Ul

defendant cannot limit the more specific waiver of sover-
eign immunity contained in 39 U.S.C. § 401(1). Accord-
ingly, although Title VII creates the cause of action for
discrimination against federal employees in their employ-
ment, the requirement that the head of the agency, or in
this case the Postmaster General, be the named defendant
does not apply in cases involving the Postal Service given
the more specific statutory provision that the Postal Ser-
vice can sue and be sued in its own name. 39 U.S.C.
§ 401(1). Indeed, the Postmaster General in Loeffler raised
the inverted argument that prejudgment interest could
not be awarded against the Postal Service, the proper
party under 39 U.S.C. § 401(1), because the petitioner had
named the Postmaster General as the defendant. The
Court explicitly rejected this argument while noting that
such a distinction amounted to exultation of form over
substance:

Respondent also seeks comfort from the concededly
technical distinction that this suit, in accordance with
the provisions of § 717(c) of Title VII, 42 USC
§ 2000e-16(c), named the head of the Postal Service as
defendant, while § 401(1) of the Postal Reorganiza-
tion Act, 39 USC § 401(1), makes the Postal Service
amenable to suit “in its official name.” In FHA v.
Burr, 309 US, at 249-250, 84 LEd 724, 60 SCt 488,
however, we found such a distinction between a suit
against the head of an agency and a suit against the
agency itself irrelevant to the force of a “sue-and-be-
sued” clause. In Burr, the “sue-and-be-sued” clause
in § 1 of the National Housing Act, 48 Stat 1246, as
amended by § 344 of the Banking Act of 1935, 49 Stat
722, applied to the Administrator of the Federal
Housing Authority acting in his official capacity. The
Court concluded that this waiver of sovereign immu-
nity permitted actions against the Authority itself,
because under the terms of the Act, all the powers of

16

the Authority were exercised through the Adminis-
trator. This case presents the inverse situation: the
“sue-and-be-sued” clause authorizes suits against the
agency, and the defendant before the Court is the
head of the agency acting in his official capacity.
However, the same logic applies. Whenever the head
of the Postal Service acts in his official capacity, he is
acting in the name of the Postal Service. Thus, here,
as in Burr, the acts of the named defendant are always
chargeable as acts of the person or entity subject to the
sue-and-be-sued clause. We therefore are not persuaded by
respondent's procedural distinction.

Loeffler, 486 U.S. at__, 108 S.Ct. at 1973 n.8&, anc 100 L.Ed.
2d at 562 n.8 (emphasis added).

Thus, this Court has held that, at least in the context
of the Postal Service which operates pursuant to a “sue
and be sued” clause, the distinction between the head of
the agency and the agency itself is nothing more than a
“technical distinction,” a “procedural distinction.”
Indeed, in terms of the requirements of Shiavone, this
distinction has been similarly viewed as a matter of form
over substance, in tnat the head of the agency and the
agency itself are functionally identical for purposes of
Title VII claims. See, Opinion below at 1488, Appendix A
at App. 31-32 (McKay, I., dissenting); Gonzales, 824 F.2d at
398-99 (Brown, J., dissenting).

It is not surprising that the Postmaster General in
Loeffler attempted to draw a distinction between the
named defendant with respect to the prejudgment inter-
est issue, since he has been so successful with the
inverted argument, made both in this case and in
numerous other cases. Opinion below at 1488 n.12:

Appendix A at App. 33 n.12, and cases cited therein.

This ¢ r compels the conclu

sion that, at | the U.S. Postal Service,
which can “sue a} n its official name”, the
distinction between t tal Service and the Postmaster
General is a mere technical distinction and cannot deteat

Mr. Johnson's Title VII claim given the specific language
of 39 U.S.C. § 401(1), notwithstanding the procedural
requirements of 42 U.S.C. § 2000e-16(c). Although the
waiver of sovereign immunity contained in 39 U.S.C
§ 401(1) is much broader than the narrow waiver con
tained in 42 U.S.C. § 2000e-16(c), it is also much more
specific than the general waiver contained in

S/vyvvey 7 .
200V0e-16(c)

CONCLUSION

Under the prior decisional law of this Court and
consistent with the other Circuit Courts facing the issue
equitable tolling of the limitations period is required in
this case, consistent with notions of fair play, substantial
ustice, and the public policy underlying the remedial
nature of Title VII. Further, in light of the “sue and be
sued” clause of 39 U.S.C. § 401(1), Mr. Johnson should
have been permitted to proceed with his Title VII action
against the Postal Service, despite his failure to comply
with the procedural technicality of naming the Postmas

ter General as a defendant

For the reasons set forth above petitioner

respectfully requests that his petition for writ of certiorari

18

to the U.S. Court of Appeals for the Tenth Circuit be

granted.

Respectfully submitted,

THOMAS L. ROBERTS

(Counsel of Record)
BRIAN E. BATES
Pryor, CARNEY & JOHNSON,
A Professional Corporation
6200 South Syracuse Way,
Suite 400
Englewood, CO 80111
Telephone: (303) 771-6200

Attorneys for Petitioner

DATED THIS 15TH DAY OF MAY 1989.

App. 1

APPENDIX A
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

JERRALD M. JOHNSON,

Plaintiff-Appellant, No. 86-2780

(Filed Nov. 30, 1988)

(Rehearing Denied
Feb. 15, 1989)

V.

UNITED STATES POSTAL
SERVICE,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLORADO
(D.C. No. 85-K-1900)

Brian E. Bates (Thomas L. Roberts, of Pryor, Carney and
Johnson, A Professional Corporation, of Englewood, Col-
orado, with him on the brief), of Pryor, Carney and
Johnson, A Professional Corporation, of Englewood, Col-
orado, for the Plaintiff-Appellant.

Jerry R. Atencio (Robert N. Miller, United States Attor-
ney, and Colleen L. Conlin, Assistant U.S. Attorney, of
Denver, Colorado, with him on the brief), Assistant U.S.
Attorney, of Denver, Colorado, for the Defendant-
Appellee.

Before McKAY, McWILLIAMS, and TACHA, Circuit
Judges.

TACHA, Circuit Judge.

App. 2

This appeal is from a grant of summary judgment in
favor of defendant on the grounds of lack of jurisdiction.
The issue on appeal is whether the federal rules allow the
plaintiff to amend his complaint in order to correct a
failure to name or serve the correct party defendant
within the statutory limitations period. Because we hold
that the federal rules do not so allow, we hold that the
action should be dismissed for failure to state a claim.!
We affirm.

i

On December 30, 1983, the plaintiff, Mr. Johnson, was
discharged from his position as a mail handler at the
Denver Bulk Mail Center. The United States Postal Ser-
vice cited his unauthorized absences from work as the
reason for the dismissal. Mr. Johnson alleges, however,
that the actual reason for the action was the permanent
disability of his right foot.

Mr. Johnson pursued his administrative appeal
through the available channels. On July 13, 1985, he
received from the Equal Employment Opportunity Com-
mission (EEOC) a letter informing him that he had thirty
days from the receipt of the letter to file a civil action in

1 The district court held that the plaintiff was unable to
amend his complaint to name the proper party, and that the
action therefore should be dismissed for lack of subject matter
jurisdiction. Johnson v. United States Posial Serv., 113 F.R.D. 73,
77 (D. Colo. 1986). Here, the proper grounds for dismissal
based on inability to amend a complaint naming an improper
party is failure to state a claim upon which relief can be
granted. We treat the dismissal by the district court as such a
dismissal.

App. 3

federal district court. On July 18, 1985, Mr. Johnson filed
with the district court a motion to proceed in forma
pauperis and for appointment of counsel. Four days later
the plaintiff was granted his motion to proceed in forma
pauperis but was denied his motion for appointment of
counsel. Johnson v. United States Postal Serv., 113 F.R.D. 73,
74 (D. Colo. 1986).

On August 12, 1985, Mr. Johnson timely filed his
complaint under Title VII of the Civil Rights Act of 1964,
naming as defendants the United States Postal Service
and “The Mailhandlers Local 321.” The district court
subsequently dismissed Mr. Johnson’s claim against the
union. Id. That dismissal is not appealed. Because Mr.
Johnson was proceeding in forma pauperis, the U.S. Mar-
shal was ordered by the court to serve the summons and
complaint. The U.S. Marshal served the U.S. Postal Ser-
vice by certified mail, the summons and complaint being
received on August 16, 1985. No service was made upon
the United States Attorney for the federal district or upon
the Attorney General of the United States, as required by
Fed. R. Civ. P. 4(d)(5) and Fed. R. Civ. P. 4(d)(4).

On January 24, 1986, the district court issued an
order to show cause why service of process was still
incomplete. Mr. Johnson, now represented by counsel,
showed sufficient cause for failing to have perfected ser-
vice within the 120-day time limit of Fed. R. Civ. P. 4(j),
and the court granted the plaintiff thirty days in which to
perfect service. Johnson, 113 F.R.D. at 74. The plaintiff
then served the U.S. Attorney, the U.S. Postal Service, and
the Attorney General. Mr. Johnson also filed a second
amended complaint alleging discrimination in employ-
ment on the basis of a physical handicap.

App. 4

The U.S. Postal Service moved to dismiss the action
for lack of subject matter jurisdiction, failure of capacity
of defendant to be sued, insufficiency of service, and
inability to substitute the proper defendant. The district
court held that, because the plaintiff had not served or
named the correct party defendant, and was unable
under the federal rules to amend his complaint to name
the proper party, the action should be dismissed for lack
of subject matter jurisdiction. Id. Mr. Johnson appeals.

IT.

When reviewing a grant of summary judgment, we
must ordinarily determine whether any genuine issue of
material fact remains and, if not, whether the district
court correctly applied the law. Franks v. Nimmo, 796 F.2d
1230, 1235 (10th Cir. 1986). Here, however, the grant of
summary judgment was based solely upon compliance or
noncompliance with the federal rules of civil procedure
and there were no material factual disputes. The judg-
ment turns entirely upon legal issues. We therefore
employ a de novo standard of review. Carey v. United
States Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987).

The plaintiff brought this action, in his initial com-
plaint, under section 706 of Title VII of the Civil Rights
Act of 1964 as amended, 42 U.S.C. § 2000e-5,2 and, in his

2 Although the plaintiff’s action perhaps is better charac-
terized as having been brought under § 717 of Title VII of the
Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-16, see
42 U.S.C. § 2000e-16(c) (stating that federal employee who

(Continued on following page)

App. 5

second amended complaint, under sections 504 and 505
of the Rehabilitation Act of 1973 as amended, 29 U.S.C.
§§ 794, 794a. Employment discrimination actions filed by
employees of the U.S. Postal Service under Title VII are
controlled by 42 U.S.C. § 2000e-16(c). This statute sets a
thirty-day limitations period for filing claims and estab-
lishes that, in such civil actions, “the head of the depart-
ment, agency, or unit, as appropriate, shall be the
defendant.” 42 U.S.C. § 2000e-16(c).

In its present form, the Rehabilitation Act of 1973
does provide for a private cause of action against the
federal government for employment discrimination based
on handicap. We agree, however, with the Ninth Circuit
that under the Rehabilitation Act, “section 501 is the
exclusive remedy for discrimination in employment by
the Postal Service on the basis of handicap.” Boyd v.
United States Postal Serv., 752 F.2d 410, 413 (9th Cir. 1985).
Section 501 - not section 504, under which the plaintiff
has brought this action - provides for a private cause of
action for federal employees. “ ‘[I]t is unlikely that Con-
gress, having specifically addressed employment of the
handicapped by federal agencies (as distinct from
employment by recipients, themselves nonfederal, of fed-
eral money) in section 501, would have done so again a

(Continued from previous page)

meets criteria of section “may file a civil action as provided in
section 2000e-5 of this title”), the distinction is without conse-
quence for the present case. Clearly, an employment discrimi-
nation action filed by a federal employee under Title VII must
meet the procedural requirements of 42 U.S.C. § 2000e-16(c).
The plaintiff, furthermore, was allowed to file a second
amended complaint that more properly brought the action
under the Rehabilitation Act of 1973.

App. 6

few sections later in section 504.’ ” Id. (quoting McGuin-
ness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th
Cir. 1984)).

Moreover, section 505(a), 29 U.S.C. § 794a(a), pro-
vides the lens that makes section 501, 29 U.S.C. § 791,
clear procedurally.? Section 505(a)(1) provides that an
action brought under section 501 operates under the pro-
cedural constraints of Title VII of the Civil Rights Act of
1964. 29 U.S.C. § 794a(a)(1). This means that such actions
are subject to 42 U.S.C. § 2000e-16(c)’s requirement of
naming “the head of the department, agency, or unit” as
the defendant. 42 U.S.C. § 2000e-16(c). If Mr. Johnson had

3 Section 505(a) provides that:

(a)(1) The remedies, procedures, and rights set forth in
section 717 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-16), including the application of sections 706(f)
through 706(k) (42 U.S.C. 2000e-5(f) through (k)), shall be
available with respect to any complaint under section 791
of this title, to any employee or applicant for employment
aggrieved by the final disposition of such complaint, or by
the failure to take final action on such complaint. In fash-
ioning an equitable or affirmative action remedy under
such section, a court may take into account the reasonable-
ness of the cost of any necessary work place accommoda-
tion, and the availability of alternatives therefor or other
appropriate relief in order to achieve an equitable and
appropriate remedy.

(2) The remedies, procedures, and rights set forth in
title VI of the Civil Rights Act of 1964 shall be available to
any person aggrieved by any act or failure to act by any
recipient of Federal assistance or Federal provider of such
assistance under section 794 of this title.

29 U.S.C. § 794a(a).

App. 7

brought this action under section 501, he would not have
escaped the procedural constraints of Title VII. We hold,
furthermore, that only section 501 provides a private
cause of action for federal employees bringing an action
alleging employment discrimination based on handicap.*

IT.

Mr. Johnson, therefore, must meet the clear statutory
requirements of 42 U.S.C. § 2000e-16(c). His right of
action is subject to the statute’s thirty-day limitations
period, and he must proceed against the head of the U. S.
Postal Service. Here, the proper defendant — the Postmas-
ter General - was never named or served. The only possi-
ble avenue for the plaintiff, therefore, is the federal rules’
provision that, under certain situations, allows the rela-
tion back of amended pleadings, Fed. R. Civ. P. 15(c).

4 Although this holding puts us at odds with the Fifth and
Sixth Circuits, the position of those circuits would render the
same end result for this plaintiff. The Fifth and Sixth Circuits
have held that both § 501 and § 504 provide for a private cause
of action by federal employees for employment discrimination
based on handicap. Smith v. United States Postal Serv., 742 F.2d
257, 260 (6th Cir. 1984); Prewitt v. United States Postal Serv., 662
F.2d 292, 304 (5th Cir. Unit A Nov. 1981). Those circuits, how-
ever, have held that Title VII procedural constraints are appli-
cable to a plaintiff that does proceed with a federal
employment handicap discrimination action under § 504. See
Smith, 742 F.2d at 260, 262; Prewitt, 662 F.2d at 304. Following
that procedural principle, such a plaintiff would be required to
abide by all the requirements of 42 U.S.C. § 2000e-16(c), includ-
ing its designation of the agency head or unit head as the
proper defendant and its 30-day limitations period. These are
the very requirements that prove fatal to Mr. Johnson’s case.

App. 8

Rule 15(c) provides that:

Whenever the claim or defense asserted in the
amended pleading arose out of the conduct, transac-
tion, or occurrence set forth or attempted to be set
forth in the original pleading, the amendment relates
back to the date of the original pleading. An amend-
ment changing the party against whom a claim is
asserted relates back if the foregoing provision is
satisfied and, within the period provided by law for
commencing the action against the party to be
brought in by amendment, that party (1) has received
such notice of the institution of the action that the
party will not be prejudiced in maintaining a defense
on the merits, and (2) knew or should have known
that, but for a mistake concerning the identity of the
proper party, the action would have been brought
against the party.

The delivery or mailing of process to the United
States Attorney, or United States Attorney’s designee,
or the Attorney General of the United States, or an
agency or officer who would have been a proper
defendant if named, satisfies the requirement of
clauses (1) and (2) hereof with respect to the United
States or any agency or officer thereof to be brought
into the action as a defendant.

Fed R. Civ. P. 15(c). The rule has a history of producing
interpretative problems for the courts, see Cooper v. United
States Postal Serv., 471 U.S. 1022, 1024 (1985) (White, J.,
dissenting from denial of certiorari) (“the Courts of
Appeals have not taken a consistent approach to this
provision”), and for that reason the Supreme Court
recently undertook a resolution of those problems, see
Schiavone v. Fortune, 477 U.S. 21, 22 (1986) (noting cer-
tiorari had been granted to resolve “apparent conflict
among the Courts of Appeals”).

App. 9

In Schiavone v. Fortune, 477 U.S. 21 (1986), the United
States Supreme Court attempted to clarify “Rule 15(c) of
the Federal Rules of Civil Procedure and its application to
a less-than-precise denomination of a defendant in com-
plaints filed in federal court near the expiration of the
period of limitations.” Id. at 22. The Schiavone Court
stated that, under rule 15(c),

{r]elation back is dependent upon four factors, all of
which must be satisfied: (1) the basic claim must have
arisen out of the conduct set forth in the original
pleading; (2) the party to be brought in must have
received such notice that it will not be prejudiced in
maintaining its defense; (3) that party must or should
have known that, but for a mistake concerning iden-
tity, the action would have been brought against it;
and (4) the second and third requirements must have
been fulfilled within the prescribed limitations
period.

Id. at 29. There is no dispute that Mr. Johnson met the
first element of this test. Our analysis therefore focuses
upon the second, third, and fourth elements.

The plaintiffs, in Shiavone, timely filed complaints in
federal district court alleging that they had been libeled
in a cover story of Fortune magazine and naming Fortune
as the defendant. Id. at 22-23. “ ‘Fortune,’ however, is
only a trademark and the name of an internal division of
Time, Incorporated. .. .” Id. at 23. After the applicable
statute of limitations for filing had passed, but well
within the permissible period for service of process, the
plaintiffs attempted to serve Time, Incorporated’s regis-
tered agent. Id. at 23, 25. The agent refused that service.
Id. at 23. The plaintiffs then amended their complaints to

App. 10

name “Fortune, also known as Time, Incorporated” as the
defendant, and served Time, Incorporated by mail. Id.

In Schiavone, the Court held that the appellate court
had correctly affirmed the district court’s dismissal of the
compiaints. Id. at 32. Any notice that Time, Incorporated
had received of the complaint had come after the end of
the limitations period. Therefore, the fourth element of
the rule 15(c) test had not been met. See id. at 30. This
result was not altered by the fact that the initial service
was mailed one day after the statute of limitations had
run; that the initial complaint described Fortune as “a
foreign corporation having its principal offices at Time
and Life Building, Sixth Avenue and 50th Street, New
York, New York 10020”; that Fortune was an internal
division of Time, Incorporated; that the initial service was
mailed to Time, Incorporated’s registered agent; or that
the initial service, before being refused, was forwarded to
Time, Incorporated’s law department with a cover letter
indicating that the “papers were for Time, Incorporated
as publisher of Fortune.” Id. at 23, 30; id. at 34 (Stevens, J.,
dissenting). The Court remained firm in the conviction
that the “plain language” of the rule had not been met. /d.
at 30.

The Schiavone Court also addressed rule 15(c)’s
requirement that its provisions be met “within the period
provided by law for commencing the action against [the
party to be brought in].” The Court pointed out that rule
3, with its clear statement that “[a] civil action is com-
menced by filing a complaint with the court,” Fed. R. Civ.
P. 3, governs the “commencement” of an action under the
federa! rules. Schiavone, 477 U.S. at 30. Thus, although
rule 4(j) allows 120 days from the filing of a complaint for

App. 11

service of process. the requirements of rule 15(c) must be
met by the end of the limitations period for filing a
complaint; the “plain meaning of the language” of rule
15(c) is not to be changed by “engrafting upon it an
extension of the limitations period equal to the asserted
reasonable time, inferred from Rule 4, for the service of a
timely filed complaint.” Id.

Here, Mr. Johnson timely filed his complaint on the
day that the limitations period expired. Rule 4(j) then
allowed him 120 days from that point to perfect service.
Because Mr. Johnson was proceeding in forma pauperis,
the U.S. Marshal was directed to perfect service. The U.S.
Marshal, however, served only the named defendant -
the U.S. Postal Service - and not the Attorney General
and the U.S. Attorney, or his or her designee, as required
by rule 4. Fed. R. Civ. P. 4(d)(5); id. 4(d)(4). The district
court, however, allowed Mr. Johnson to correct these
service problems. See Johnson, 113 F.R.D. at 74.

In its current form, rule 15 addresses the issue of
relation back based on service of the Attorney General or
the U.S. Attorney in a suit against a government agency
or official. That issue was incorporated into the rule in
1966 when rule 15 was amended in response to critical
commentary, e.g., Byse, Suing the “Wrong” Defendant in
Judicial Review of Federal Administrative Action: Proposals
for Reform, 77 Harv. L. Rev. 40 (1963), and the rule was
specifically amended to address problems in suits against
government agencies or officials. That section of rule
15(c) now provides that:

The delivery or mailing of process to the United

States Attorney, or United States Attorney’s designee,
or the Attorney General of the United States, or an

App. 12

agency or officer who would have been a proper
defendant if named, satisfies the requirement[s] of
[notice without prejudice and of knowledge of mis-
take in original complaint] with respect to the United
States or any agency or officer thereof to be brought
into the action as a defendant.

Fed. R. Civ. P. 15(c). Rule 15(c) still instructs us, however,
that these requirements must be fulfilled within the lim-
itations period for commencing an action.®

Mr. Johnson failed to meet the plain language of rule
15(c)’s clear, reformed requirements. Although the U.S.
Marshal failed to perfect service under rule 4(d), the
court allowed those problems to be corrected. Mr. John-
son’s problems arise not from inadequate service, but
from an inadequate complaint. Even if the U.S. Marshal
had correctly followed rule 4(d) at the time of Mr. John-
son’s filing and had served the Attorney General or the
U.S. Attorney, the above reformed provisions of rule 15(c)
would not have been met uniess that service had been
made on the same day as Mr. Johnson’s filing. Yet, under
rule 4, the U.S. Marshal had 120 days in which to perfect
service. In the face of such facts, there is no reason to lay
at the U.S. Marshal’s feet the blame for a mistake entirely

5 To be sure, when the Attorney General and the U.S.
Attorney were served as defendants under the plaintiff's sec-
ond amended complaint, that action, seen in the light of the
post-1966 rule 15(c), met the second and third elements of the
four-pronged Schiavone test: the elements of notice that is not
prejudicial and of knowledge of mistake in the original com-
plaint. See Schiavone v. Fortune, 477 U.S. 21, 29 (1986). Rule 15(c)
still requires, however, that those elements be met within the
limitations period: the fourth element of the Schiavone test. Id.

App. 13

precipitated by the inadequacy of the plaintiff's
complaint.

IV.

The plaintiff contends on appeal that the district
court erred in not tolling the thirty-day limitations period
based on equitable considerations. This circuit does con-
sider that “the thirty-day time limitation of section
2000e-16(c) is not jurisdictional and may be subject to
equitable tolling in appropriate cases.” Martinez v. Orr,
738 F.2d 1107, 1110 (10th Cir. 1984). After consideration of
the present facts and our circuit’s case law, we conclude,
however, that this is not an appropriate case for equitable
tolling.

The Martinez court noted that:

This circuit’s decisions have indicated that the
time limits contained in Title VII will be tolled only
where the circumstances of the case rise to a level of
“active deception” sufficient to invoke the powers of
equity. Cottrell v. Newspaper Agency Corp., 590 F.2d
836, 838-39 (10th Cir. 1979). For instance, equitable
tolling may be appropriate where a plaintiff has been
“lulled into inaction by her past employer, state or
federal agencies, or the courts.” Carlile v. South Routt
School District RE 3-], 652 F.2d 981, 986 (10th Cir.
1981); see Gonzalez-Aller Balseyro, 702 F.2d at 859.
Likewise, if a plaintiff is “actively misled,” or “has in
some extraordinary way been prevented from assert-
ing his or her rights,” we will permit tolling of the
limitations period. Wilkerson v. Siegfried Insurance
Agency, Inc., 683 F.2d 344, 348 (10th Cir. 1982); see also
Cottrell, 590 F.2d at 838.

Id. Thus, in this circuit, a Title VII time limit will be tolled
only if there has been “active deception.” Mr. Johnson has

App. 14

not been “actively misled” here and we also conclude
that he was not “lulled into inaction” in any way that
rises to the active deception standard of our circuit’s case
law.

In Carlile v. South Routt School Dist. RE 3-], 652 F.2d
981 (10th Cir. 1981), the district court told the plaintiff
explicitly that her action would be considered com-
menced as of the time of her filing a motion to proceed in
forma pauperis, a statement subsequently relied upon by
her appointed counsel. Id. at 983. This court felt obliged
to acquiesce in the district court’s unilateral extension of
the limitations period. Id. at 986. We note that in spite of
its frequent citation as a case setting forth this circuit’s
principle of equitable tolling, Carlile itself stated that it
was compelled solely by the district court’s action and
that “[iJn so doing we limit our holding specially to the
particular facts and circumstances above related.” Id.

In Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702
F.2d 857 (10th Cir. 1983), the district court clerk unam-
biguously told the plaintiff that the filing of his right-to-
sue letter would toll the Title VII limitations period until
the plaintiff had had sufficient opportunity to obtain
counsel. Id. at 859. The plaintiff, having never suc-
cessfully obtained counsel and thus proceeding pro se,
relied upon the clerk’s statement. Id. This court therefore
determined that equitable tolling was applicable to the
circumstances of that case. Id.

In Martinez, the plaintiff received a letter from the
EEOC informing him that he had the right to bring suit
within thirty days of his receipt of the letter. 738 F.2d at
1111. The letter also discussed the plaintiff’s “right to
request reopening and reconsideration by the EEOC.” Id.
The plaintiff followed the latter course of action and

App. 15

thereby missed his chance to bring suit, for the letter had
failed “to make clear that the right to sue and the right to
request reopening are distinct, independent rights, and
that an election to pursue only the latter completely
waives the former.” Id. This court concluded thai equita-
ble tolling was appropriate, for “Martinez was in fact
misled and lulled into inaction by the EEOC.” Id. at 1112.

In contrast to these cases, Mr. Johnson was not
actively misled or lulled into inaction. His failure to file
an adequate complaint was not due to a false representa-
tion by any court, agency, or putative defendant. In short,
“{a]lthough the propriety of equitable tolling must neces-
sarily be determined on a case-by-case basis,” Gonzalez-
Aller Balseyro, 702 F.2d at 859, the plaintiff’s case here
does not merit equitable tolling of the limitations period.

Finally, the relation back of some amendments has
been allowed previously under the so-called identity-of-
interest exception. See Schiavone, 477 U.S. at 28 n.7 (listing
circuit-level cases). The Supreme Court has summarized
the exception, while only adopting it arguendo, by stating
that “[tlimely filing of a complaint, and notice within the
limitations period to the party named in the complaint,
permits imputation of notice to a subsequently named
and sufficiently related party.” Id. at 29. This circuit’s case
law concerning the identity-of-interest exception has
noted, however, that the post-1966 rule 15(c) is an explicit
statement of the procedures and safeguards that make up
this exception. See Travelers Indem. Co. v. United States ex
rel. Construction Specialties Co., 382 F.2d 103, 106 (10th Cir.
1967) (“The 1966 amendment simply clarifies, by explic-
itly stating, the permissive procedure and its appropriate
safeguards which have existed under Rule 15(c) since its
promulgation.”). Regardless of whether rule 15(c) has
codified the doctrine of identity-of-interest, Mr. Johnson’s

App. 16

case fails, because he does not meet an essential require-
ment of both the rule and the doctrine: he has not given
“notice within the limitations period.”

V.

In summary, Mr. Johnson’s attempt to amend his
complaint falls short of the requirements clearly estab-
lished by rule 15. We join those circuits which have held
that Schiavone clearly controls on facts similar to this
case. Discussing rule 15(c), the Supreme Court has
stated:

The linchpin is notice, and notice within the lim-
itations period. Of course, there is an element of
arbitrariness here, but that is a characteristic of any
limitations period. And it is an arbitrariness imposed
by the legislature and not by the judicial process.

Schiavone, 477 U.S. at 31.
The order of the district court is AFFIRMED.

6 Mondy v. Secretary of the Army, 845 F.2d 1051, 1053 (D.C.
Cir. 1988); Williams v. Army & Air Force Exch. Serv., 830 F.2d 27,
29-30 (3d Cir. 1987); Paulk v. Department of the Air Force, Chanute
Air Force Base, 830 F.2d 79, 81 (7th Cir. 1987); Gonzales v.
Secretary of the Air Force, 824 F.2d 392, 394 (5th Cir. 1987), cert.
denied, 108 S. Ct. 1245 (1988); Hymen v. Merit Sys. Protection Bd.,
799 F.2d 1421, 1422 (9th Cir. 1986), cert. denied, 107 S. Ct. 1900
(1987). Both Mondy and Paulk held that grounds existed for
equitable tolling, and the plaintiffs in those cases therefore
were allowed to amend their complaints. Mondy, 845 F.2d at
1054, 1057 (limitations period tolled during “marshal’s delay”
of service; court speaks only of 30-day “deadline” and never
mentions rule 4(j)’s 120-day service period); Paulk, 830 F.2d at
83 (limitations period tolled during pendency of in forma
pauperis motion).

App. 17

No. 86-2780 - JERRALD M. JOHNSON v. UNITED
STATES POSTAL-SERVICE
McKAY, Circuit Judge, dissenting:

The majority reads Shiavone v. Fortune, 477 U.S. 21
(1986), as dictating a broader principle than the Supreme
Court, in fact, articulated. This reading has led to what |
consider to be an erroneous analysis and result in this
case.

I.

On December 30, 1983, the U.S. Postal Service dis-
charged Mr. Johnson from his position as a mail handler
at the Denver Bulk Mail Center. Mr. Johnson pursued
administrative review of his dismissal for approximately
eighteen months, first with the Merit System Protection
Board and later with the Equal Employment Opportunity
Commission (“EEOC”). In both fora the U.S. Postal Ser-
vice participated as the adversary party. On July 13, 1985,
Mr. Johnson received a final decision (“right-to-sue”) let-
ter from the EEOC notifying him that he had thirty days
from receipt of the letter to file a civil action in federal
district court.

Five days after receiving the “right-to-sue” letter Mr.
Johnson petitioned the district court for permission to
proceed in forma pauperis and requested appointment of
counsel. Four days later, on July 22, the court denied Mr.
Johnson’s motion for appointment of counsel but granted
the motion to proceed in forma pauperis,’ and ordered the

1 28 U.S.C. § 1915(a) (1982) provides:

Any court of the United States may authorize the
commencement, prosecution or defense of any suit, action

(Continued on following page)

App. 18

U.S. Marshal to serve the summons and complaint upon
the defendant without the prepayment of fees.” Johnson v.
United States Postal Serv., 113 F.R.D. 73, 74 (D. Colo. 1986).

Left with no option but to proceed pro se, Mr. John-
son filed his complaint? on August 12, 1985 - only
twenty-one days after the court’s decision and clearly
within the statutory period. However, two problems
arose: First, the complaint named the U.S. Postal Service
as defendant instead of the Postmaster General who, as
agency head, is the statutorily-prescribed defendant. Sec-
ond, Mr. Johnson unfortunately relied on the U.S. Mar-
shal to effect timely and proper service pursuant to the
court’s July 22 Order. This the Marshal failed to do. Asa

(Continued from-previous page)

or proceeding, civil or criminal, or appeal therein, without
prepayment of fees and costs or security therefor, by a person
who makes affidavit that he is unable to pay such costs or give
security therefor. Such affidavit shall state the nature of the
action, defense or appeal and affiant’s belief that he is entitled
to redress.

2 28 U.S.C. § 1915(c) (1982) requires the U.S. Marshals to
“issue and serve all process, and perform all duties in [in
forma pauperis] cases.”

3 There is some confusion in the record as to which section
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1982), served
as the basis of Mr. Johnson’s initial complaint. See ante at App.
4-5, & n.2. The issue is immaterial for purposes of this decision
since all parties agree that the critical operative section in this
appeal is 42 U.S.C. § 2000e-16(c). That section sets a 30-day
limitations period for bringing suit and which prescribes that
the department or agency head must be named as the
defendant.

App. 19

result, the Postal Service was not served until August 16
(three days after the thirty-day period), and neither the
U.S. Attorney’s Office nor the Attorney General was
served as required under Fed. R. Civ. P. 4(d).

Presumably due to the Marshal’s failure to effect
proper service, in January 1986 the court issued an Order
to Show Cause as to why service of process was incom-
plete. On February 3, 1986, Mr. Johnson, appearing
through counsel for the first time, satisfied his burden
and was granted a thirty-day extension in order to perfect
service. Within that time period, service of an amended
complaint was made upon the U.S. Attorney, the Attor-
ney General, and the U.S. Postal Service. Johnson, 113
F.R.D. at 74.

On April 1, 1986, the defendant moved to dismiss
pursuant to Fed. R. Civ. P. 12(b) and 15(c). On the basis of
the Supreme Court’s decision in Schiavone v. Fortune, 477
U.S. 21 (1986),4 the court granted defendant’s motion to

* In Schiavone plaintiffs sued Fortune magazine for libel
within New Jersey’s one-year statute of limitations. “Fortune,”
however, is only a trademark denoting an internal division of
Time, Incorporated. The Plaintiffs attempted to serve process
on Time’s registered agent in New Jersey, but the agent refused
service because Time was not a named defendant in the suit.
After the statutory filing period had expired, the plaintiffs
amended their respective complaints to add Time as a defen-
dant, and subsequently served process on Time. The district
court dismissed the complaint, holding that the amendment
did not relate back to the date of the original filing under Rule
15(c) because Time did not receive notice of the institution of
the libel action within the period provided by law for com-
mencing the action against it. The Supreme Court affirmed,
setting forth a four-part test for determining when “relation
back” of an amended pleading under Rule 15(c) will be permit-
ted. Schiavone, 477 U.S. 21.

App. 20

dismiss for lack of subject matter jurisdiction. Johnson, 113
ER.D. at 74-75. The court read Schiavone as requiring
dismissal because the proper defendant, the Postmaster
General, had not received notice within the thirty-day
limitations period. Absent timely notice, the complaint
could not be amended under Rule 15(c) to name the

proper party.

IT.

In this case, two issues with solid precedent in this
circuit, sister circuits, and the Supreme Court, intersect
for the first time before this court. The first issue is
whether 42 U.S.C. § 2000e-16(c) permits equitable tolling
of the applicable limitations period, especially in the case
of a pro se plaintiff proceeding in forma pauperis. The
second issue is whether Fed. R. Civ. P. 15(c) permits the
relation back of an amended complaint when there is
significant identity of interest between an improperly-
named defendant and the proper party.

A. Equitable tolling:

In Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984),
this court examined the policies underlying the limita-
tions period for actions brought under section 2000e-16(c)
and concluded “that the thirty-day time limitation of
section 2000e-16(c) is not jurisdictional and may be sub-
ject to equitable tolling in appropriate cases.” (footnote
omitted) Accord Mondy v. Secretary of the Army, 845 F.2d
1051, 1056-57 (D.C. Cir. 1988). Cf. Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982) (holding that filing a

App. 21

timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to Title VII actions but rather
“a requirement that, like a statute of limitations, is subject
to waiver, estoppel, and equitable tolling.” (footnote
omitted)).5

° Zipes serves as the foundation on which our circuit has
based its determination that § 2000e-16(c), like § 2000e-5(f) is
limitational rather than jurisdictional, and thus subject to equi-
table tolling. See Martinez, 738 F.2d at 1109-10; accord, Mondy,
845 F.2d at 1054-55.

The Zipes Court, in turn, based its decision upon: (1)
Congress’s treatment of the time limit in a provision entirely
separate from the one that defines the jurisdiction of the
courts, 455 U.S. at 394-95; (2) legislative history. id.; (3) prior
cases reflecting an assumption that the filing requirement was
not jurisdictional, id. at 397-98; and (4) Title VII’s remedial
purpose, id. at 398.

The Court specifically set forth the analytical approach to
be used in addressing technical challenges to Title VII actions
by stating:

In Love v. Pullman Co., . . . we announced a guiding
principle for construing the provisions of Title VII. Declin-
ing to read literally another filing provision of Title VII, we
explained that a technical reading would be “particularly
inappropriate in a statutory scheme in which laymen,
unassisted by trained lawyers, iNitiate the process. Id., at
527. That principle must be applied [to the time limit in 42
U.S.C. 2000e-5(f)] as well.”

Zipes, 455 U.S. at 397.

The rationale of Zipes is not only applicable in the case
before us but also warrants the conclusion that courts should
show special solicitude in cases where pro se plaintiffs seek to
vindicate their civil rights.

App. 22

One situation specifically recognized by sister cir-
cuits as justifying the tolling of the statutory limitations
period - where a pro se plaintiff proceeds in forma pau-
peris in an action under 42 U.S.C. § 2000e-16(c) — arises in
this case. In Mondy v. Secretary of the Army, 845 F.2d 1051,
the District of Columbia Circuit recently addressed a case
almost factually indistinguishable from the one before
this court. Mondy involved a challenge under Title VII to
plaintiff's dismissal from Walter Reed Medical Center.
However, two procedural defects in commencing the
action jeopardized his suit: First, the complaint named
the wrong defendant, his activity commander, rather than
the Secretary of the Army. Second, although the com-
plaint was timely filed, the United States Marshals
delayed service for nearly four months, long past
§ 2000e-16(c)’s thirty-day deadline. 845 F.2d at 1052. Sev-
eral months after the complaint was served, the plaintiff
filed an amended complaint naming the proper
defendant.

The government sought dismissal on the ground that
plaintiff’s failure to meet the statutory limitations period
defeated the court’s jurisdiction. Jd. at 1054. Based on its
reading of Schiavone, the trial court agreed and granted
the motion to dismiss. Relying on Zipes, the District of
Columbia Circuit rejected the government’s contention
that the statute was jurisdictional. Moreover, the court
concluded that when a pro se plaintiff proceeding in
forma pauperis justifiably relies upon the U.S. Marshal to
effect service, and such service is made by the Marshal
after the statutory limitations period, equitable tolling
applies and service will be deemed timely. 845 F.2d at
1054-57.

App. 23

Even the Seventh Circuit, which, unlike our circuit,
views section 2000e-16(c)’s time limitation as jurisdic-
tional,® Sims v. Heckler, 725 F.2d 1143 (7th Cir. 1984), has
carved out an exception tolling the limitations period
during the pendency of a plaintiff’s motion to proceed in
forma pauperis. See Paulk v. Department of Air Force, 830
F.2d 79, 82-83 (7th Cir. 1987). Paulk involved the appeal of
a district court dismissal of a Title VII claim because the
plaintiff had named the U.S. Air Force as defendant
rather than Casper Weinberger, the Secretary of the Air
Force. In Paulk, as in this case, the plaintiff proceeded pro
se and in forma pauperis. Also, as in this case, in her
attempt to amend the defective complaint the plaintiff in
Paulk failed to give notice to the proper defendant within
the thirty-day period provided by section 2000e-16(c).
The district court, relying on Schiavone, dismissed the
suit. The Seventh Circuit reversed and remanded.

In reviewing the district court’s proceedings, the
Paulk court found the delay in service of a compliant
entrusted to the U.S. Marshal under 28 U.S.C. § 1915(a)

fully expectable due to this Circuit’s rule that the

district judge may consider whether the complaint is
frivolous or malicious before granting leave to pro-
ceed in forma pauperis under § 1915(a) and authoriz-
ing the issuance of the summons and service of the

® The circuits have split on the issue of whether the time
period specified in 42 U.S.C. § 2000e-16(c) is jurisdictional. See
Mondy v. Secretary of the Army, 845 F.2d 1051, 1057 (D.C. Cir.
1988) (non-jurisdictional); Hornsby v. United States Postal
Serv., 787 F.2d 87, 89 (3d Cir. 1986) (non-jurisdictional); Milam
v. United States Postal Serv., 674 F.2d 860, 862 (11th Cir. 1982)
(same). But see Cooper v. United States Postal Serv., 746 F.2d
714, 715-16 (9th Cir. 1984), cert. denied, 471 U.S. 1022 (1985)
(jurisdictional); Sims v. Heckler, 725 F.2d 1143, 1146 (7th Cir.
1984) (jurisdictional); Eastland v. Tennessee Valley Auth., 553
F.2d 364, 368 (5th Cir.), cert. denied, 434 U.S. 985 (1977) (same).

App. 24

complaint. . . . The delay in deciding to grant this
motion could easily consume the thirty-day limita-
tions period and make impracticable the filing of in
forma pauperis petitions in such suits. Telling-the lim-
itations period during the pendency of such a motion, even
when the federal government is the defendant, allows 28
U.S.C. § 1915 and Rule 15(c) to operate harmoniously,
instead of denying the benefits of the 1966 Amendment of
Rule 15(c) to the very plaintiffs who are most likely to
need it.

Id. at 82 (citations omitted) (emphasis added).”

7 The benefits to which the Paulk court refers are those
“remedial purposes” of the 1966 Amendment to Rule 15. The
Notes of the Advisory Committee on Rules explain:

The Problem [of knowing when an amendment shall
relate back to the date of the original pleading] has arisen
most acutely in certain actions by private parties against
officers or agencies of the United States. . . . In several
recent cases the claimants instituted timely action but mis-
takenly named as defendant the United States, the [federal
agency], . . . and a Secretary who had retired from the
office . . . . Discovering their mistakes, the claimants
moved to amend their complaints to name the proper
defendant; by this time the statutory [period for filing a
civil action] had expired. The motions were denied on the
ground that the amendment “would amount to the com-
mencement of a new proceeding and would not relate back
in time as to avoid the statutory provision . . . that suit be
brought within [the statutory period].

Relation back is intimately connected with the policy
of the statute of limitations. The policy of the statute
limiting the time for suit against the Secretary of [a federal
agency] would not have been offended by allowing rela-
tion back in the situation described above.

Fed. R. Civ. P. 15 (Notes, 1966 Amendment).

App. 25

This circuit observes a procedural rule for the evalua-
tion of in forma pauperis motions that is virtually identi-
cal in requirements and purpose to that in effect in the
Seventh Circuit. Therefore, it is reasonable to assume
that in this jurisdiction too, delay encountered while the
district court determines a plaintiff’s financial eligibility
under § 1915, or prepares a statement denying the plain-
tiff’s in forma pauperis motion, could consume the entire
limitations period.?

In Baldwin County Welcome Center v. Brown, 466 U.S.
147, 151 (1984) (per curiam), the Supreme Court gave
various examples of procedural unfairness that justify
equitable tolling. Among those cited was that “the court
has led the plaintiff to believe that she has done every-
thing required of her” (citing Carlile v. South Routt School

When presented with a motion for leave to pro-
ceed in forma pauperis, the district court should first
determine if the plaintiff satisfies the economic eligi-
bility requirement of 28 U.S.C. § 1915(a). If a findirg
of economic justification is made, the court should
allow the complaint to be docketed without prepay-
ment of fees.

Once leave has been granted, the district court
may, under § 1915(d), dismiss the complaint, even
prior to service of process, if it determines the com-
plaint to be frivolous or malicious.

McCone v. Holiday Inn Convention Center, 797 F.2d 853, 854
(10th Cir. 1986) (citations omitted).

° The risk is especially acute where, as in this case, the
limitations period is only thirty days long.

App. 26

District RE 3-J, 652 F.2d 981 (10th Cir. 1981)). Three
months after Baldwin County was decided, but without
citation to that case, this court held that

the time limits contained in Title VII will be tolled
only where the circumstances of the case rise to a
level of “active deception” sufficient to invoke the
powers of equity. For instance, equitable tolling may
be appropriate where a plaintiff has been “lulled into
inaction by her past employer, state or federal agen-
cies, or the courts.”

Martinez, 738 F.2d at 1110 (citations omitted) (emphasis
added).

In this case, Mr. Johnson filed his motion to proceed
in forma pauperis on July 18, 1985. The motion was granted
four days later in an Order in which the court directed
the U.S. Marshal to serve process. Unfortunately, the
Marshal did not serve the U.S. Postal Service until three
days after the limitations period had expired. Applying
the tolling rule expounded in Baldwin County, as well as
our own precedent, it is clear that the limitations period
should be tolled in this case. Once it granted Mr. John-
son’s in forma pauperis petition, the court, through the
U.S. Marshal’s Office, was required by federal law to
properly serve defendants. Nothing more was expected
of, or could have been done by, Mr. Johnson. A reason-
able person in Mr. Johnson’s posiiion would have under-
stood that the court’s Order, by its terms, provided that
his complaint would be properly served in a timely man-
ner. Unquestionably, Mr. Johnson was “lulled into inac-
tion” by his reasonable reliance on the process authorized
by statute and implemented by officers of the court.

App. 27

In determining the appropriateness of equitable toll-
ing to this case, a critical difference between the major-
ity’s position and my own is how we view the role of the
U.S. Marshal in discharging her responsibilities in in
forma pauperis cases. The majority takes the view that the
Marshal’s role is merely to serve the complaint as it is
received within the 120 days provided for by Rule 4 (j).
However, 29 U.S.C. § 1915(c) instructs that “[t]he officers
of the court shall issue and serve all process, and perform
all duties” in this type of case. In my view, the plain
language of section 1915(c) imposes a special duty upon
officers of the court to assist impecunious and generally
‘unsophisticated plaintiffs to navigate safely through the
procedural maze created by applicable statutes and rules.

In Mr. Johnson’s case, the Marshal failed to fulfill her
duty in two respects: First, she failed to serve all the
appropriate parties as required by Fed. R. Civ. P. 4(d)(4),
(5). Although the court later permitted Mr. Johnson to
cure the Marshal’s mistake, the need to employ counsel
(which plaintiff could ill afford), and to participate in a
special hearing, undoubtedly created unnecessary frus-
tration and confusion for this plaintiff. Second, the Mar-
shal failed to serve process in a timely manner. The
majority minimizes this error by pointing to Rule 4’s 120-
day time period as justifying its coiclusion that “there is
no reason to lay at the U.S. Marshal’s feet the blame for a
mistake entirely precipitated by the inadequacy of the
plaintiff’s complaint.” Ante, at App. 12-13. But what is the
basis of the supposed inadequacy? According to the
majority, it is that tiie complaint was filed on the last day
of the limitations period and plaintiff had no justifiable
reason to expect prompt service of process since the

App. 28

Marshal had a 120-day window. However, one brief
hypothetical demonstrates the fallacy of this reasoning.

Let us assume that Mr. Johnson had filed his pro se
complaint within one week of the court's denial of his
motion for appointed counsel instead of twenty-one days
later (I hasten to add that there is no evidence on the
record to suggest undue delay on Mr. Johnson's part).
Under Fed. R. Civ. P. 4(j), the Marshal would still have the
same 120 days within which to act. Thus, if reasonable
delays in the Marshal’s office prevented service from
being effected until fifteen or twenty days after the com-
plaint was filed, the Marshal would have complied with
Rule 4 but Mr. Johnson would still be out of court because
the thirty-day limitations period of 42 U.S.C.
§ 2000e-16(c) had not been met.'°

I cannot accept that this harsh result was intended by
either Congress or the courts in endeavoring to assist in
forma pauperis plaintiffs. In my view, § 1915(c)’s language
demands that the Marshal be cognizant of and act within

10 Under the majority’s analysis a plaintiff could be com-
pletely out of court even though the Marshal proceeded within
the time limit permitted by Fed. R. Civ. P. 4(j). 1 submit that
such an outcome rises to “active deception” which “in some
extraordinary way [prevents plaintiff] from asserting his or her
rights.” Under our case law, this is sufficient to permit equita-
ble tolling of the limuations period. See Wilkerson v. Siegfried
Ins. Agency, 683 F.2d 344, 348 (10th Cir. 1982); see also Martinez,
738 F.2d at 1110.

It was similar reasoning which led the Mondy court to
recognize the applicability of equitable tolling when a pro se
plaintiff proceeding in forma pauperis justifiably relies upon the
U.S. Marshal to effect service. 845 F.2d at 1054-57.

App. 29

the limitations period provided by statute in order to
effect timely service. Anything less would render nuga-
tory the statutes and rules designed to assist in forma
pauperis plaintiffs to access the courts.

Finally, the majority rejects the view that Mr. Johnson
was “lulled into inaction” or in other ways “actively
deceived” by his justifiable reliance upon court officials
and court processes. The majority draws an artificial dis-
tinction between circumstances where one party is explic-
itly told something that leads to the forfeiting of rights
and situations such as the present one where reliance ona
court order is not deemed overt enough to qualify. I
respectfully submit that there is no principled basis for
that distinction. The issue is reliance and how that reliance
is fostered, regardless of the method employed. This is
especially true when dealing with an unsophisticated
plaintiff such as Mr. Johnson.

I conclude that equity and our precedent require a
holding that, in this case, the limitations period was
equitably tolled and service upon the U.S. Postal Service
was timely. Furthermore, this circuit should adopt the
reasoning of the District of Columbia Circuit in Mondy
and the Seventh Circuit in Paulk, and hold that the limita-
tions period of 42 U.S.C. § 2000e-16(c) is equitably tolled
during the pendency of a plaintiff’s in forma pauperis
motion. Finally, the court should hold that under
§ 1915(c), U.S. Marshals must proceed within the applica-
ble limitations period (and not merely within Rule 4(j)’s
time period) in order to discharge the duty imposed by
statute.

App. 30

B. Relation-back under Rule 15(c):

The majority’s affirmance of summary judgment mis-
applies Schiavone to these facts. A proper reading of
Schiavone does not bar the plaintiff in this case from
having his day in court.

In Schiavone, the Supreme Court outlined four factors
governing the applicability of the relation-back provi-
sions of Fed. R. Civ. P. 15(e):

(1) the basic claim must have arisen out of the con-
duct set forth in the original pleading; (2) the party to
be brought in must have received such notice that it
will not be prejudiced in maintaining its defense; (3)
that party must or should have known that, but for a
mistake concerning identity, the action would have
been brought against it; and (4) the second and third
requirements must have been fulfilled within the pre-
scribed limitations period.

477 U.S. at 29.

In this case there is no dispute that the first require-
ment is met. As for the second, our circuit has adopted,
and the Supreme Court in Schiavone recognized, the avail-
ability of an “identity-of-interest” exception “under
which an amendment that substitutes a party in a com-
plaint after the limitations period has expired will relate
back to the date of the filing of the original complaint” if
the “correct” defendant is sufficiently identified with the
improperly-named party. 477 U.S. 28 & n.7 (citing Trav-
elers Indemnity Co. v. United States ex rel. Construction
Specialties Co., 382 F.2d 103 (10th Cir. 1967)). Although the
Third Circuit in Schiavone rejected that approach, the
Supreme Court did not consider it applicable to the facts

App. 31

before it, the Court’s own language approves the applica-
tion of the exception in appropriate circumstances:

The object of the [identity-of-interest] exception is to
avoid the application of the statute of limitations
when no prejudice would result to the party sought
to be added.

Timely filing of a complaint, and notice within the
limitations period to the party named in the com-
plaint, permit imputation of notice to a subsequently
named and sufficiently related party.

477 U.S. at 28-29 (emphasis added).

In this case the district court recognized that timely
notice to the Postal Service would have provided the
Postmaster General with informal or constructive notice.
The dissenting opinion in an analogous case, Gonzales v.
Secretary of Air Force, 824 F.2d 392 (5th Cir. 1987) (Brown,
J., dissenting), states:

It is important to remember that even if the
Secretary had been the named party, he, personally,
probably never would have received notice of
Gonzales’ routine Title VII claim. The Secretary, when
sued solely in his official capacity, and the Air Force
are functionally ideiitical for purposes of this suit
and this appeal.

Whether the Air Force or some functionary in the
office of the Secretary is served, the same people at
the Department . . . will process the summons, the
same Air Force representative will appear in court,
and the same entity will shoulder the burden of loss
if Gonzales prevails.

The Air Force representatives who received the
first complaint naming “The Air Force” were, in all

App. 32

likelihood, the same people who received the
amended complaint naming “The Secretary of the Air
Force.” I cannot believe that the law tolerates such an
absurdity that the Secretary was “prejudiced” by this
mistake.

Id. at 398-99.

Consonant with our precedent which cannot be
rejected without en banc review, and the demands of
reality, this court should recognize what all parties recog-
nize, that is, the clear identity of interest which exists
between the Postmaster General and the U.S. Postal Ser-
vice. Under the circumstances in this case notice can be
properly imputed to the Postmaster General, resulting in
no prejudice to the defendant. | conclude that the second
requirement of the Schiavone test is met.!!

Schivone next requires that the proper party have had
knowledge that, but for the mistake, it would have been
named in the action. In Judge Brown’s words, this
requirement “is easily met” because “{Injo identity of
interest and shared knowledge can be posited that is any
closer than that between the [agency head] and his

11 The facts of Schiavone are distinguishable on this point.
First, in Schiavone, both parties were served after the limita-
tions period had run and, unlike the present case, no basis for
equitable tolling existed. Second, there is considerably greater
identity of interests between an agency head and his/her
agency than what normally exists between divisions operating
under a corporate umbrella or between the general corporate
organization and one (of many) internal divisions as was the
case in Schiavone.

App. 33

[agency].!2 The analysis which satisfies the second prong
of Schiavone also applies here, because the same people
who would serve as the Postmaster General’s representa-
tives participated as Mr. Johnson’s adversaries in almost
two years of administrative proceedings. Applying a rea-
sonable person test to determine whether a party “should
have known” of the mistake, the dissent in Gonzales con-
cludes that in this type of situation the third Schiavone
requirement should be satisfied. Gonzales, 824 F.2d at 399
(Brown, J., dissenting).

Finally, Schiavone requires that notice to the proper
party, and knowledge of its probable involvement in the
law suit, must occur during the prescribed limitations

12 The volume of case law on the subject indicates that
scores of plaintiffs have had their employment discrimination
claims against federal agencies dismissed for failure to name as
defendant the “head of the department, agency, or unit, as
appropriate.” 42 U.S.C. § 2000e-16(c). Many of these cases
specifically involve the Postal Service and, if one were of a
suspicious nature, one could easily conclude that the agency
(1) knows of the procedural pitfalls presented by the statutory
language, and (2) regularly relies on a plaintiff’s inadvertence
to win through procedural maneuvering what it might not be
able to secure through an adjudication on the merits. See, e.g.
Hymen v. Merit Sys. Protection Bd., 799 F.2d 1421 (9th Cir.
1986), cert. denied, 107 S. Ct. 1900 (1987); Jarrell v. United States
Postal Serv., 753 F.2d 1088 (D.C. Cir. 1985); Cooper v. United
States Postal Serv., 740 F.2d 714 (9th Cir. 1984), cert. denied, 471
U.S. 1022 (1985). See also McGuire v. Tisch, 44 FEP Cases 1497
(S.D.N.Y. 1987); Hale v. United States Posial Serv., 41 FEP Cases
1691 (N.D. Ill. 1986), aff'd without opinion, 826 F.2d 1067 (7th
Cir. 1987).

SS

App. 34

period. Given the preceding discussion of equitable toll-
ing and the identity of interest exception, I conclude that
this element is met in this case.}3

Ill.

I believe that the majority’s characterization of
§ 2000e-16(c) and Rule 15(c) traps the unwary citizen
seeking to vindicate his civil rights. The disposition of
this case is contrary to the spirit of Title VII,14 and makes
a mockery of the intent which underlies the Federal Rules
of Civil Procedure.!5 Therefore, I respectfully dissent.

13 This analysis has relied on equitable tolling to satisfy
the requirement of notice to the appropriate parties within the
limitations period. Alternatively, the dissent in Gonzales per-
suasively argues that the harsh result in Schiavone was dictated
by the New Jersey statute’s requirement that the libel action
“commence” within the limitations period with “commence-
ment” (defined as “filing of the complaint plus service”). By
contrast, the language of § 2000e-16(c) requires only that the
suit be filed within the 30-day period, and, therefore, a different
result, although one not inconsistent with Schiavone, is
indicated.

I believe Judge Brown’s analysis in Gonzales is sound and
presents an alternative basis for finding that Mr. Johnson could
properly rely on the provisions of Rule 15(c) to correct the
technical error in naming the defendant. See Gonzales, 824 F.2d
at 396-400 (Brown, J., dissenting).

14 See Zipes, 455 U.S. at 397.

15 Rule 1 of the Federal Rules of Civil Procedure provides
that the rules “shall be construed to secure the just, speedy and
inexpensive determination of every action.

App. 35

APPENDIX B

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CIVIL ACTION NO. 85-K-1900

JERRALD M. JOHNSON,
Plaintiff,

VS.

UNITED STATES POSTAL SERVICE,
Defendant.

MEMORANDUM OPINION AND ORDER
(Filed Nov. 7, 1986)

KANE, J.
BACKGROUND is

Defendant filed a Motion to Dismiss under F.R.Civ.P.
12(b) and Rule 15(c) for lack of jurisdiction over the
subject matter and for failure of capacity of defendant to
be sued, for insufficiency of service and for inability to
substitute the proper defendant. Plaintiff, a former postal
service employee brought this action under §§794 and
794(a) of the Civil Rights Act of 1964, Title VII alleging in
his Second Amended Complaint discrimination in
employment based on physical handicap. For the reasons
following, the motion to dismiss for inability to substitute
the proper defendant is granted.

On about December 20, 1983, the defendant dis-
charged plaintiff from his position as a mail handler.
Defendant contends the removal was due to plaintiff’s

App. 36

absence without leave. Plaintiff, on the other hand, main-
tains that he was removed solely for the reason that he
has a permanent disability in his right foot.

On July 10, 1985, the EEOC sent plaintiff a right to
sue letter informing him he had 30 days in which to file
an independent action. On July 18, 1985, plaintiff filed a
motion to proceed in forma pauperis and for appoint-
ment of counsel. Chief Judge Finesilver granted plain-
tiff’s motion on the 22nd of July and ordered the U.S.
Marshall to serve process but denied appointment of
counsel. Plaintiff filed an initial pro se complaint on
August 12, 1984, naming the United States Postal Service
and The Mail Handlers, Local 321 as defendants. The U.S.
Marshall sent a summons and complaint by certified mail
to the United States Postal'Service c/o E.C.Nix at 7755 E.
56th St., Denver, CO, which was received on August 16,
but did not serve the U.S. Attorney nor the Attorney
General as required under Rule 4(d). Plaintiff’s original
complaint, having been filed within 30 days of receipt of
the right to sue notice, was timely filed. 42 U.S.C. §2000 e
16(c).

On January 3, 1986, I dismissed plaintiff's claim
against Local 321 on defendant’s motion to dismiss for
failure to state a claim upon which relief could be
granted. After I issued an order to show cause on January
24, 1986 requesting plaintiff to address the Court as to
why service of process was incomplete, plaintiff submit-
ted (now with counsel) a response on February 3, 1986
showing cause for failure to perfect service within 120
days of filing the complaint pursuant to Rule 4(j). I found

App. 37

plaintiff’s response showed sufficient cause and permit-
ted plaintiff 30 days in which to perfect service on
defendant. Thereafter, plaintiff properly served the U.S.
Attorney on February 7, 1986, the United States Postal
Service in Denver on February 10, 1986 and the U.S.
Attorney General on February 11, 1986.

OPINION

As a preliminary matter, I note that the United States
Postal Service is not the proper defendant in civil rights
actions. The statute clearly states that the proper defen-
dant in a Title VII action against a federal employer is the
head of the agency or department, not the agency or
department itself. 42 U.S.C. §2000e-16(c). Cooper v. United
States Postal Service, 740 F.2d 714 (9th Cir. 1984), Balanciere
v. United States Postal Service, 648 FSupp. 38 (D.Colo.
1984). Albert Vincent Casey, Postmaster General, is there-
fore the proper defendant in the present case. In arguing
against this, plaintiff directs my attention to a recent case
in which the United States Postal Service was the named
defendant. Daubert v. United States Postal Service, 733 F.2d
1367 (10th Cir. 1984). That decision, however, did not
address the issue of who was the proper defendant, but
dismissed the case on other grounds. Therefore, it does
not affect my decision.

Defendant first contends that plaintiff’s action
should be dismissed for lack of subject matter jurisdic-
tion. Defendant maintains that plaintiff’s reliance on 28
U.S.C. §1331 as grounds for jurisdiction is improper
because Article VII has been held to be an exclusive
remedy for civil rights actions. To say that Article VII is

ee

App. 38

an exclusive remedy for discrimination in cases involving
federal employment merely denies relief under other gen-
eral federal tort statutes. 28 U.S.C. §1331 confers iurisdic-
tion on this court regardless of the general or exclusive
nature of the underlying action providing the cause of
action was created by federal statute. Because plaintiff
has stated a claim for reljef which arises under a federal
statute, I have subject matter jurisdiction over the action.

Next defendant contends the action should be dis-
missed for insufficiency of service claiming service was
not made until after the 120 day time limit designated for
service under Rule 4(j). Rule 4(j) states: “If a service of the
summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint and the
party on whose behalf such service was required cannot
show good cause why such service was not made within
that period, the action shall be dismissed as to that defen-
dant without prejudice.” In my Minute Order dated Feb-
ruary 4, 1986, I found and now confirm that plaintiff has
shown good cause why service was not timely made.
Therefore, dismissal is not proper under Rule 4()).

Defendant further claims that plaintiff has not yet
properly served the United States Postal Service because
the designated agent for service of process specified in 39
C.FR. §2.2 was not served. Defendant has not cited any
case or statutory authority nor am I aware of any author-
ity which demands service must be made on a designated
agent. Ostensibly, service on a designated agent of a
government agency is permissive rather than mandatory
as is the case with service on a corporation under Rule
4(d)(3). Rule 4(d)(4) and (5), which governs service of
process on the United States Postal Service (39 U.S.C.

App. 39

§409), merely requires a copy of the summons and com- -
plaint be sent by registered or certified mail to the
agency. The service affected by plaintiff complies with
this rule. For the above reasons, defendant’s motion to
dismiss for insufficiency of service is denied.

The final question presented is whether plaintiff can
amend his complaint pursuant to Rule 15(c) to name the
proper defendant. Reluctantly, I conclude plaintiff may
not so amend. Rule 15(c) provides:

Whenever the claim or defense asserted in the
amended pleading arose out of the conduct, transac-
tion, or occurrence set forth or attempted to be set
forth in the original pleading, the amendment relates
back to the date of the original pleading. An amend-
ment changing the party against whom a claim is
asserted relates back if the foregoing provision is
satisfied and, within the period provided by law for
commencing the action against him, the party to be
brought in by amendment (1) has received such
notice of the institution of the action that he will not
be prejudiced in maintaining his defense on the
merits, and (2) knew or should have known that, but
for a mistake concerning the identity of the proper
party, the action would have been brought against
him.

The delivery or mailing of process to the United
States Attorney, or his designee, or the Attorney Gen-
eral of the United States, or any agency or officer
who would have been a proper defendant if named,
satisfies the requirement of clause (1) and (2) hereof
with respect to the United States or any agency or
officer thereof to be brought into the action as a
defendant.

As I stated in Balanciere, supra, before an.amended plead-
ing may properly relate back to a pleading timely filed a
newly named defendant must have some kind of notice:

le

App. 40

actual, constructive, formal or informal, that a suit has
been filed within the time provided under the statute of
limitations. The only event in the record which might
constitute notice to the government was the certified
mailing of the summons and complaint received by the
Postal Service on August 16, 1985, three days after the
statute of limitations had expired.

The question arises whether three days after the lim-
itations period is considered notice “within the period
provided by law for commencing the action?” The cir-
cuits have split on the interpretation of the exact time in
which a new defendant must have had notice under Rule
15(c). A number of courts have held the time for notice
includes a reasonable time for service of process follow-
ing expiration of the statutory period. Ingram v. Kumar,
585 F.2d 566, (2nd Cir. 1978), Kirk v. Cronvich, 629 F.2d 404
(5th Cir. 1980), Hendrix v. Memorial Hospital of Galveston
County, 776 F.2d 1255 (5th Cir. 1985), Bagwell v. City of
Atlanta, 109 F.R.D. 290 (N.D. Ga. 1985), U.S. for the Benefit
of Arrow Electronics v. G.H. Coffey Co. Inc., 100 F.R.D. 413
(D.Me. 1983), Ratcliffe v. Insurance Co. of North America,
482 FSupp. 759 (E.D. Pa. 1980), Clark v. Southern Railway
Co., 87 F.R.D. 356 (N.D. Ill. 1980), Davis v. Krauss, 478
F.Supp. 823 (E.D.N.Y. 1979), Mitchell v. Hendricks, 68
“.R.D. 564 (E.D. Pa 1975).

A parade of other courts has determined that the
plain language of Rule 15(c) dictates that notice must be
received within the time limitation provided by law and
leaves nothing to the court’s discretion to expand on this
explicit time constraint. Archuleta v. Duffy's, Inc., 471 F.2d
33 (10th Cir. 1973), Weisgal v. Smith, 774 F.2d 1277 (4th Cir.
1985), Cooper v. United States Postal Service, 740 F.2d at 717,

App. 41

Allen v. Veteran Administration, 749 F.2d 1386 (9th Cir.
1984), Stewart v. U.S., 655 F.2d 741 (7th Cir. 1981), Varlack
v. S.W.C. Caribbean, Inc., 555 F.2d 171 (3rd Cir. 1977),
Odence v. Salmonson Ventures, 108 F.R.D. 163 (D.R.1. 1985),
Sassi v. Breir, 76 F.R.D. 487 (E.D. Wis. 1977), aff’d. 584 F.2d
234 (7th Cir. 1978). The Tenth Circuit has consistently
adhered to the view that notice of an action must be
attributed to a new party before the expiration of the
statute of limitations before Rule 15(c) relation back will
be permitted. Watson v. Unipress, Inc., 733 F.2d 1386 (10th
Cir. 1984).

The United States Supreme Court resolved the dis-
pute in its recent decision, Schiavone v Fortune, 477 US.
21, 106 S.Ct. 2379, 91 L.Ed.2d. 18 (1986), where it deter-
mined that Rule 15(c) clearly requires notice be received
before the expiration of the applicable limitations period.
The Supreme Court explicitly rejected the idea that a
court may choose between a “liberal” and a “literal”
interpretation of the Rule. The court said the plain mean-
ing of the Rule requires notice within the time provided
for commencing an action which falls under Rule 3 and
does not refer to the time for process under Rule 4.

The present case harbors several unique factors
which make adherence to a literal interpretation partic-
ularly harsh. First, the original complaint was filed pro se
which means it may be held to a less stringent standard
than formal pleadings drafted by lawyers. Hutton v. Heg-
gie, 454 FSupp. 870 (D.Colo. 1978), Haines v. Kerner, 404
U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d. 652. (1972). In addition,
the directive stated in Rule 15(a) that leave to amend
“shall be freely given when justice so requires” appears —
to be particularly appropriate when the party seeking to

EE

App. 42

amend was permitted to proceed in forma pauperis.
Wyant v. Crittenden, 113 F.2d 179, 175 (D.C. Cir. 1940).
Second, plaintiff cannot be accused of creating the risk by
waiting until the midnight hour to file his complaint
thereby making himself unworthy of equitable consider-
ations. With a scant 30 day limitations period, plaintiff
diligently filed a petition to proceed in forma pauperis
aid for appointment of counsel. Plaintiff had only 2 to 3
weeks after receipt of the order denying his request for
counsel to locate private counsel or draft the complaint
himself. Finally, the identity of the proper defendant was
made especially difficult for a pro se plaintiff to ascertain
because the U.S. Postal Service was the only named
defendant in all EEOC documents. Harsh results, how-
ever, have not affected the determination of the U.S.
Supreme Court. See dissenting opinion Schiavone v. For-
tune, 106 S.Ct. 2379 (1986), or the opinion of the Tenth
Circuit. Archuleta v. Duffy's, Inc., 471 F.2d at 34, Watson v.
Unipress, Inc., 733 F.2d at 1390, (specifically rejecting
Ingram). See also Cooper v. U.S. Postal Service, 740 F.2d at
717. Unfortunately, the above cited authority precludes
consideration of such equities in my decision.

Absent any notice before the expiration of the 30 day
_ period, plaintiff will be unable to amend his complaint to
name the proper party. From the record before me, I find
the government did not have notice within the applicable
limitations period. For this reason, defendant’s motion to
dismiss for lack of subject matter jurisdiction is granted.

Dated at Denver, Colorado this 7th day of November
1986.

/s/ John A. Kane, Jr.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1368%3A1. Public record. Not legal advice.